Re: Uniformed Services Former Spouse Protection Act (USFSPA)

I would like to see the law come up with an "approximate value" of the military retirement for the servicemembers rank and years in service...

...and then allow the courts to treat that value as if it were in a 401K or other account, and award the spouse an appropriate cash value rather than this lifelong payment thing.

For example...say and E-6 with 12 years in...his retirement "value" might equate to say...$60K. So, the judge may order him to pay his spouse $30K of that $60K. (obviously since he doesn't actually have it in cash, a payment plan may be needed)...but then once he's done, he's done.

This would protect the spouse from future misconduct of the servicemember...(like say a divorced Colonel who rapes his secretary and loses his retirement...both for himself and his ex-wife's portion). It would also not have the spouse benefitting from the future service of the member (i.e. that TSgt gets commissioned, does 30 more years and retires as a colonel, when she was only there for the TSgt part).

I don't think this scheme would be inconsistent with the rest of the US laws regarding property distribution at the time of divorce.

So what happens if the former military spouse dies before she receives all of her cut of the military retirement? Would her heirs inherit her future share of the military retirement? In other words, would your plan provide the former military spouse with property rights to her share of the military retirement, i.e. the right to leave to her heirs her cut of the military retirement that she has not yet received? Would the retired military service member have any such right under your proposal?

Re: Uniformed Services Former Spouse Protection Act (USFSPA)

Originally Posted by USN - Retired

So what happens if the former military spouse dies before she receives all of her cut of the military retirement? Would her heirs inherit her future share of the military retirement? In other words, would your plan provide the former military spouse with property rights to her share of the military retirement, i.e. the right to leave to her heirs her cut of the military retirement that she has not yet received? Would the retired military service member have any such right under your proposal?

Hadn't thought of that part...but yes, I would assume it would pass to her heirs...why not?

My wife got half her first husband's 401K...what should happen to that money when she dies?

Re: Uniformed Services Former Spouse Protection Act (USFSPA)

Hadn't thought of that part...but yes, I would assume it would pass to her heirs...why not?

So does that mean that military retirement should be "property" for the former military spouse, but it should remain "income" for the retired and divorced military service member?

Originally Posted by Measure Man

My wife got half her first husband's 401K...what should happen to that money when she dies?

You should give it back to the man who earned it. Let me guess -- that wouldn't happen...

Let's take a look at the current system:

If a former military wife who is receiving part of a military retirement pay direct from DFAS were to die before her former husband, then her so-called "share" of the military retirement reverts back to her former husband, i.e. the monthly military retirement income will no longer be divided when the former military spouse dies. Property usually doesn't behave that way. If the deceased former spouse's share of the military retirement pay was her "property", then why is it not going to her heirs?

Additionally, if a military service member were to die before his former wife, then the former wife would no longer receive her so-called "share" of the military retirement pay (assuming the court did not order SBP). If the former spouse's share of the military retirement pay is her "property", then why did she lose it when her former husband died? Property usually doesn't behave that way either.

Now let's take a hypothetical look at what might happen under your proposal:

A US Navy Lieutenant (O-3) and his wife, Mrs A, were divorced after 8 years of marriage. Mrs A was awarded $48,000.00 of the Lieutenant's military retirement pay. The Lieutenant didn't have that money available at the time of the divorce so payment was deferred until he retires when it will then be paid in installments with interest from his retirement pay to his ex-wife. A year after the divorce, the Lieutenant's ex-wife married Mr B, a man who never served in the military and was never even a military spouse. Mrs B (i.e the Lieutenant's ex wife) died a year after she married Mr B. Will Mr B, a civilian in every sense of the word, now receive $48,000.00 of the Lieutenant's military retirement pay paid in installments with interest from the Lieutenant's military retirement pay? Is it right for Mr B to receive a part of the Lieutenant military retirement pay? That is a potentially egregious situation.

Under your proposal, a retired military service member might even conceivably end up making payments to some man who ran off with his wife. Your proposal might possibly be viable only if the law stated that the award of military retirement pay can only be collected by the former military spouse and not by any of her heirs if she should die before she collects the military retirement pay.

On the other hand, your proposal might be considerably better for those military service members who were in short term marriages. Under your proposal, those military service members who were in short term marriages would not be stuck making payments for life to an ex-spouse.

Comparing a 401k to military retirement pay is the common ruse used by former military spouses, their lawyers, and numerous politicians. While there may be some very vague similarities, there are also some big differences. Here's the biggest difference: The 401k is "property" while the military retirement pay is "income". If we are really serious about treating military retirement as "property", then it is only fair and proper to say that a military service member who currently has 19 years of service has a military retirement account balance of zero. Additionally, since it takes 20 years of service to earn the military retirement pay, a military spouse whose marriage was less than 20 years certainly did not earn the so called "property" of military retirement pay because she has not "served" for 20 years. If a military service member has to serve for 20 years to earn the so-called "property" of military retirement pay, then why shouldn't the spouse be held to the same standard?

What would happen if we were to re-write USFSPA so that it directs the courts to look at military retirement pay as income instead of property? The courts could still award the former military spouse with alimony and/or child support. The judge could still award the alimony for life. The former military spouses could still get the money direct from DFAS. The former military housewife would still be financially protected if her hubby were to run off with his new girl friend. Would the military spouse community accept such a change to USFSPA? The answer is "never" and here's why - In a divorce, property acquired during the marriage is usually divided regardless of whether each person needs or even deserves a share of that property, especially in community property states. Alimony, on the other hand, is usually only given if a person needs and deserves the alimony. The military spouse community, current and former, want to ensure that they will get a cut of the military retirement pay even if they don't need or even deserve a cut of that pay. In other words, the average military housewife doesn't want to lose her lifetime cut of the military retirement pay just because she chose to abandon her family and run off with the bartender at the Officers' Club. And that's why the military spouse community want military retirement pay to be considered property.

I can't believe that you let me drag you into another debate about USFSPA. You must be kicking yourself.:laugh

Re: Uniformed Services Former Spouse Protection Act (USFSPA)

So does that mean that military retirement should be "property" for the former military spouse, but it should remain "income" for the retired and divorced military service member?

You should give it back to the man who earned it. Let me guess -- that wouldn't happen...

Of course not...it's her money and that's the last thing she would want. Actually, it will go to her children.

Marriage is as much a business contract as anything else. If you and another person made a contract...and under the terms of this contract, he agrees to provide you a share of a joint account for your non-profit making contributions to his business...if the contract is severed, he owes you that money. It is your money.

Let's take a look at the current system:

If a former military wife who is receiving part of a military retirement pay direct from DFAS were to die before her former husband, then her so-called "share" of the military retirement reverts back to her former husband, i.e. the monthly military retirement income will no longer be divided when the former military spouse dies. Property usually doesn't behave that way. If the deceased former spouse's share of the military retirement pay was her "property", then why is it not going to her heirs?

Additionally, if a military service member were to die before his former wife, then the former wife would no longer receive her so-called "share" of the military retirement pay (assuming the court did not order SBP). If the former spouse's share of the military retirement pay is her "property", then why did she lose it when her former husband died? Property usually doesn't behave that way either.

There is no doubt that military retirement is not exactly like other types of property. We have no argument there.

Now let's take a hypothetical look at what might happen under your proposal:

A US Navy Lieutenant (O-3) and his wife, Mrs A, were divorced after 8 years of marriage. Mrs A was awarded $48,000.00 of the Lieutenant's military retirement pay. The Lieutenant didn't have that money available at the time of the divorce so payment was deferred until he retires when it will then be paid in installments with interest from his retirement pay to his ex-wife.

Under my proposal it would not be delayed until his retirement...he would pay it immediately. What he didn't have, would be paid in installments beginning immediately. Perhaps, she could get her entire share from a state fund that he then owes the debt to.

A year after the divorce, the Lieutenant's ex-wife married Mr B, a man who never served in the military and was never even a military spouse. Mrs B (i.e the Lieutenant's ex wife) died a year after she married Mr B. Will Mr B, a civilian in every sense of the word, now receive $48,000.00 of the Lieutenant's military retirement pay paid in installments with interest from the Lieutenant's military retirement pay? Is it right for Mr B to receive a part of the Lieutenant military retirement pay? That is a potentially egregious situation.

It is Mrs Bs money.

Under your proposal, a retired military service member might even conceivably end up making payments to some man who ran off with his wife. Your proposal might possibly be viable only if the law stated that the award of military retirement pay can only be collected by the former military spouse and not by any of her heirs if she should die before she collects the military retirement pay.

I understand the diffuclty in this situation...however, it is not inconsistent with any other form of property a spouse gets in a divorce. It happens all the time...wife gets the house in divorce...later that house goes to her second husband, who now lives in the house that the first husband paid for. I imagine that sucks...but divorce sucks...but a bad marriage sucks worse.

On the other hand, your proposal might be considerably better for those military service members who were in short term marriages. Under your proposal, those military service members who were in short term marriages would not be stuck making payments for life to an ex-spouse.

precisely.

Comparing a 401k to military retirement pay is the common ruse used by former military spouses, their lawyers, and numerous politicians. While there may be some very vague similarities, there are also some big differences. Here's the biggest difference: The 401k is "property" while the military retirement pay is "income".

Actually...military retirement pay is property...lol...that's what the USFSPA says. But, yes, it is different than other forms of property

If we are really serious about treating military retirement as "property", then it is only fair and proper to say that a military service member who currently has 19 years of service has a military retirement account balance of zero. Additionally, since it takes 20 years of service to earn the military retirement pay, a military spouse whose marriage was less than 20 years certainly did not earn the so called "property" of military retirement pay because she has not "served" for 20 years. If a military service member has to serve for 20 years to earn the so-called "property" of military retirement pay, then why shouldn't the spouse be held to the same standard?

You don't earn your retirement just for your 20th year of service...you earn it for each of the 20 years.

Obviously, the reason it is treated this way is to "protect" the nonmilitary spouse if the military member runs off at 19 years and leaving the spouse with nothing.

What would happen if we were to re-write USFSPA so that it directs the courts to look at military retirement pay as income instead of property? The courts could still award the former military spouse with alimony and/or child support. The judge could still award the alimony for life. The former military spouses could still get the money direct from DFAS. The former military housewife would still be financially protected if her hubby were to run off with his new girl friend. Would the military spouse community accept such a change to USFSPA? The answer is "never" and here's why - In a divorce, property acquired during the marriage is usually divided regardless of whether each person needs or even deserves a share of that property, especially in community property states. Alimony, on the other hand, is usually only given if a person needs and deserves the alimony. The military spouse community, current and former, want to ensure that they will get a cut of the military retirement pay even if they don't need or even deserve a cut of that pay. In other words, the average military housewife doesn't want to lose her lifetime cut of the military retirement pay just because she chose to abandon her family and run off with the bartender at the Officers' Club. And that's why the military spouse community want military retirement pay to be considered property.

The alimony set up could also work...assuming that the courts could award alimony off of "future income"...I think that would work as well.

I can't believe that you let me drag you into another debate about USFSPA. You must be kicking yourself.:laugh

Re: Uniformed Services Former Spouse Protection Act (USFSPA)

I just knew this would happen.............................

Once again, the fact that the military retirement system is NOT a typical retirement where marital assets are invested over time and therefore dividable at divorce as community property is being ignored. It is an inconvenient truth (God I love Al Gore, I can give him credit for one thing in life) but nonetheless truth. I know this is déjà vu (since I have said it approximately a dozen times on this forum) but…….

I think it is an unfair law signed under duress by legislators made to feel guilty by the horror stories of terrible military retirees who trade in their wife for a younger model after the loyal wife has given up her career chances to loyally follow her man from base to base.

The above described scenario is terrible and deserves to be rectified. Unfortunately it is the exception and not the rule portrayed by Pat Schroeder during her histrionics in getting the bill passed.

Unlike a traditional retirement annuity, there is no community property put into a military retirement (i.e. cash). It is the labor of the military member alone which results in the retired pay. The DoD Comptroller made this clear to Congress on many occasions. This advice was ignored time and again.

The military member must complete a minimum of 20 years of loyal and adequate service in order to receive their retired pay. A wife must merely stay married for 10 of those years and her conduct is not held to the loyalty test. Her faithfulness or unfaithfulness to the marriage is not grounds for a judge to dismiss the request. She has no burden to prove that by being married to the service member and moving from place to place her career chance were limited. In fact if it could be proved that job opportunities for the wife were enhanced by being married to the military member it has no bearing on the decision to award a portion of the retired pay. It is simply a matter of math. Years of service, years of marriage, amount of overlap. Period, done, money awarded.

While repeal of the law would not be the fairest of acts, modification to allow judges to weigh the facts as they apply to each and every case would go a long way towards rectifying many wrongs done to retired military members since the passage of the Uniformed Services Former Spouses' Protection Act (USFSPA).

Many speak of fairness and equity. I agree. Apply the same standards the military member is subject to in earning his/her retirement to its division. Faithful and honorable service…..did the wife sacrifice anything (tangible and provable)?

I realize that the USFSPA states that the retired pay can be considered community property but that doesn't make it a good law. God knows there have been and will be innumerable bad laws. All we can do is hope for redress with some future Congress. For all you who think that the law is fair as written feel free to do what you want with your retired pay.

Re: Uniformed Services Former Spouse Protection Act (USFSPA)

If you and another person made a contract...and under the terms of this contract, he agrees to provide you a share of a joint account for your non-profit making contributions to his business...

Does your marriage contract specifically state that you agree to provide your wife with a share of your military retirement income? Does your marriage contract specifically state that your wife is a co-owner of any property that you acquire during your marriage?

Originally Posted by Measure Man

if the contract is severed, he owes you that money.

The marriage contract for a military housewife is a completely nonbinding contract, legally speaking. The military housewife does not have any legal obligations to fulfill in the marriage contract. If a housewife breaks the marriage contract, she faces no financial penalties. Actually, if a housewife breaks the contract, she may be financially rewarded, i.e. with alimony and community property. What does the military housewife owe her husband if she breaks the marriage contract? It is a very lopsided contract. It's not really even a contract. The warranty on your new toaster is a more legally binding contract than the marriage contract.

Originally Posted by Measure Man

Marriage is as much a business contract as anything else.

If there are no children in the marriage, then what exactly does a military housewife contribute to her so-called "business contract" of marriage?

In my opinion, marriage should be a strictly personal relationship based on love and respect, and not on money. We should get government out of marriage altogether. Government (i.e. marriage law and divorce law) has made a mess of the institution of marriage. We should do away with the divorce industry. Legally, the government should look at a married couple as roommates or housemates. Of course, that probably won't happen anytime soon. Perhaps I am thinking way too far outside the box.

Originally Posted by Measure Man

There is no doubt that military retirement is not exactly like other types of property.

That's because it is not property.

Originally Posted by Measure Man

We have no argument there.

We don't?!?!

Originally Posted by Measure Man

Under my proposal it would not be delayed until his retirement...he would pay it immediately. What he didn't have, would be paid in installments beginning immediately. Perhaps, she could get her entire share from a state fund that he then owes the debt to.

What if he doesn't retire? You would have him pay for something that doesn't yet exist and may never exist.

Originally Posted by Measure Man

but divorce sucks...

Divorce doesn't seem to financially suck for the spouse who didn't earn any money in a marriage.

Originally Posted by Measure Man

Actually...military retirement pay is property...lol...that's what the USFSPA says.

USFSPA is legislative hocus pocus. I get the impression that you believe that USFSPA is moral and right simply because it is the law.

Originally Posted by Measure Man

You don't earn your retirement just for your 20th year of service...you earn it for each of the 20 years.

But at year nineteen, there is NO military retirement. You, USFSPA and the military spouses say that military retirement pay is "property". The IRS, DFAS and I say that military retirement pay is "income". No matter what you call that critter though, it simply does not exist at year nineteen.

Originally Posted by Measure Man

Obviously, the reason it is treated this way is to "protect" the nonmilitary spouse if the military member runs off at 19 years and leaving the spouse with nothing.

Should USFSPA also financially "protect" the childless (or childfree) military housewife of 7 years who was a miserable wife and who ran off with the pool cleaner at the base pool?

The frustrating aspect of a debate about USFSPA is that ardent USFSPA supporters, especially most of the military wives, are only willing to look at one side of the coin. On one side of the coin, we have the wonderful and loyal military housewife of 30 years who was the primary caregiver of 4 children. That woman deserves some financial protection in the event of a divorce (possibly even a lifetime share of the military retirement pay direct from DFAS). On the other side of the coin, we have the former military spouse who was a military wife for only 10 years, she never worked, she never raised children as the primary caregiver, and she often created problems for her husband and the military. I challenge everybody here on this forum to show us why that woman deserves any financial protection in a divorce other than perhaps very short term alimony.

It is understandable that we have laws that protect the military spouses, but the laws should also protect the military service members. We have laws that protect military service members from predatory lenders. We should also have laws that protect military service members from predatory spouses.

Originally Posted by Measure Man

...always a pleasure, my friend, always a pleasure.

I do really enjoy this debate. I just wish we could give it more visibility.